CAFC Grants US' Voluntary Remand Motion on Use of 'd' Test in AD Case
The U.S. Court of Appeals for the Federal Circuit on Dec. 2 granted the government's voluntary remand motion for the Commerce Department to reconsider its use of the Cohen's d test in an antidumping duty case in light of the Federal Circuit's decisions in Stupp v. U.S. and Marmen v. U.S. largely invalidating the agency's use of the test, which is used to detect "masked" dumping (Mid Continent Steel & Wire v. United States, Fed. Cir. # 24-1556).
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In a per curiam order from Judges Richard Taranto, William Bryson and Tiffany Cunningham, the court said it's granting the voluntary remand motion, which is "consistent with ordinary practice when an agency has materially changed the policy directly at issue in the case, mooting the specific dispute presented on appeal." Commerce should have the chance to "set forth an alternative policy analysis, which may then be subject to judicial review," the judges noted.
The appellate court held oral argument on the voluntary remand motion earlier this week after exporters led by PT Enterprise said they oppose the motion (see 2512010056). Counsel for PT Enterprise urged the court to either reject the remand motion on the grounds that the use of the Cohen's d test writ large isn't unreasonable in the present case, adding that should the court issue a remand order, it should instruct the agency to reach a particular outcome: the use of the d test with a single standard deviation.
The government noted that Commerce has changed its methodology in light of Stupp and Marmen, adopting a new "price differences test" (see 2509030070). While counsel for PT Enterprise said during argument that this new test is unreasonable, the judges acknowledged that this issue isn't ripe for consideration by the court at this stage.